Charlotte, NC Law Firm
704-714-1450
FREE CONSULTATION 24/7
Looking for a Charlotte DWI Lawyer Near You?
Call Today!
bar-downtown-charlotte-nc

Fourth DWI Conviction in Less Than Ten Years for Hickory Woman

Earlier today, a Hickory woman was convicted of her fourth impaired driving offense in less than ten years. She was first convicted of DWI in Catawba County in July 2005 and July 2007. She was later convicted of DWI in Alexander County in March 2010. The latest conviction stems from an offense back in December 2013 when she was pulled over for an expired registration and subsequently charged with DWI. She was sentenced to no less than 13 months and no more than 25 months of imprisonment. Let’s look at how the sentence for the Hickory woman was determined under north carolina statute.

When sentencing a person convicted of impaired driving, North Carolina G.S. 20-179(c) directs the judge or jury to “determine whether there are any grossly aggravating factors in the case.” One of the grossly aggravating factors is

A prior conviction for an offense involving impaired driving if:

a.     The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or

b.     The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with the present sentencing; or

c.     The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20-38.7.

Each prior conviction is a separate grossly aggravating factor.

Looking at the prior convictions of the Hickory woman, the July 2005 occurred outside of the seven-year window to count as a grossly aggravating factor. However, the July 2007 and March 2010 convictions would both be within seven years of her latest offense, which occurred in December 2013.

Under G.S. 20-179(c), the judge must impose an Aggravated Level I sentence if there are three or more grossly aggravating factors. If the defendant was driving with a minor in the car or if there are two other grossly aggravating factors, then the judge is required to impose a Level I sentence. The judge must impose a Level II sentence if the defendant was not driving with a minor in the car and only one other grossly aggravating factors applies.

In the case of the Hickory woman, she would not be sentenced at the most severe level, the Aggravating Level I. Although she had three prior convictions, only two of them counted as grossly aggravating factors. Since she only had two grossly aggravating factors, the statute required the judge to impose a Level I sentence.

Subsection (g) of G.S. 20-179 states that a Level I punishment includes a fine of up to $4,000 and term of imprisonment between between 30 days and 24 months. The term of imprisonment may be reduced to 10 days if the defendant abstains “from alcohol consumption [as] monitored by a continuous alcohol monitoring system.”

So the statute provides that the maximum term of imprisonment for a Level I offender is 24 months. How then was the Hickory woman sentenced to a term of imprisonment between 13 and 25 months? To figure this out, we have to look at the habitual impaired driving statute.

A person who has committed three impaired driving offenses and commits a fourth within 10 years violates the North Carolina habitual impaired driving statute. G.S. 20-138.5(a) states that

A person commits the offense of habitual impaired driving if he drives while impaired as defined in G.S. 20-138.1 and has been convicted of three or more offenses involving impaired driving as defined in G.S. 20-4.01(24a) within 10 years of the date of this offense.

Included in the definition of “offenses involving impaired driving as defined in G.S. 20-4.01(24a)” is “[i]mpaired driving under G.S. 20-138.1.” All of the Hickory woman’s impaired driving offenses occurred in North Carolina, so they all qualify as “impaired driving under G.S. 20-138.1.” It is interesting to note that even if one of the offenses had occurred in another state, they would still be covered under the definition’s subsection (d) which includes “[a]n offense committed in another jurisdiction which prohibits substantially similar conduct prohibited by the offenses in this subsection.”

The first of the woman’s convictions was in March 2005 and the most recent offense occurred in December 2013. Therefore, the woman’s four convictions fall within a ten-year period, and she can be convicted under the habitual impaired driving statute.

The habitual impaired driving statute has a separate punishment from the impaired driving offense. G.S. 20-138.5(b) states that “[a] person convicted of violating this section shall be punished as a Class F felon and shall be sentenced to a minimum active term of not less than 12 months of imprisonment, which shall not be suspended. Sentences imposed under this subsection shall run consecutively with and shall commence at the expiration of any sentence being served.” In addition, subsection (d) provides that “[a] person convicted under this section shall have his license permanently revoked.”

G.S. 15A-1340.17 sets out the structured sentencing scheme. A presumptive range of imprisonment term is given for each class of felony and point range determined from prior convictions. A judge is permitted to deviate from the presumptive range based on the finding of aggravating and mitigating factors found under G.S. 15A-1340.16 (which are separate and different from those found in the dwi sentencing statute).

Under G.S. 15A-1340.14(b), it would appear that the prior DWI convictions would count for one point each when determining the woman’s point range from prior convictions. However, in State v. Gentry (1999), the North Carolina Court of Appeals held that in determining the prior record for the sentencing of habitual impaired driving, the court should not count the prior DWI convictions upon which the habitual impaired driving conviction is made.

If the woman had no other prior convictions, she would be sentenced at Level I. The presumptive range for a Class F felony at a Level I is not less than 13 months and not more than 16 months imprisonment. Someone with 18 or more prior conviction points would be sentenced at Level VI and would have a presumptive range of not less than 26 months and not more than 33 months imprisonment.

If you have been charged with habitual impaired driving, visit www.rflaw.net for legal help.

Additional DWI Articles

April 27, 2021
Injured By a Drunk Driver – Who Can I Sue?

While drunk driving accidents have been on the decline in the past few years, drunk driving is still a major problem in the United States and a leading cause of car accidents. The most recent statistics released by the National Highway Traffic Safety Administration show that approximately 28 people die in car accidents every day […]

July 28, 2020
Wined and Fined: Good Samaritan Charged with DWI

I. You Will Need a Lawyer Just because someone has had drinks, does notautomatically mean that the law should rest on their shoulders and result in an automatic conviction. That is partly why, under North Carolina law, a series of safeguards have been adopted. These safeguards often rely on, and are helpfully followed, by experienced […]

July 16, 2020
Drinking While Working: Can Workplace Culture Lead to Company Liability?

I. Working While Impaired It is a sobering crisis. We cannot say for sure just exactly how many people drink during work hours, and then drive a vehicle within a short period of time after leaving the restaurant or bar. Often, it requires help from a car accident attorney to see if this drinking is […]

May 13, 2020
Talking PC: Probable Cause and Flawed Police DWI Arrest

I. PC for DWI An experienced Charlotte criminal trial attorney is aware of the unique place that DWI charges can play in North Carolina courts. There’s no doubt that the public generally supports crackdowns on DWI offenses in North Carolina. But here’s the news flash: as important as DWI is, to maintaining public safety, it’s […]

linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram